What If There's No Winner on Election Day?

         By Buck Sexton

Americans usually expect November 3 to be the date that will determine the presidency, but it may not be that simple this time. There are realistic scenarios – perhaps even likely ones – where we do not know who will be our next president after Election Day. With razor-thin vote margins plausible in the half dozen or so swing states that are likely to determine the election, changes to the process due to the COVID-19 pandemic may create chaos.

While 2020 has been a brutal year in politics with ferocious partisanship driving both sides, Americans need to be prepared for the very real chance that the election will turn into a weeks-long battle that will stress-test the foundations of our political system.

Mail-in ballots are the most likely reason for a delayed election-night result. Five states already hold all mail-in elections (Colorado, Hawaii, Washington, Oregon, and Utah) but there are recent additions to that list because of COVID-19 fears. New Jersey and California, both with huge populations, have chosen to be vote-by-mail states this election cycle. There are also many more states that allow what's called "absentee ballots" for specified circumstances, and some of them have added concerns over COVID-19 to their list of acceptable reasons.

Politically, the fight so far has been over the distinction between mail-in ballots and absentee ballots, though both systems allow votes to be sent in via the mail. The difference, Republicans point out, is that universal mail-in voting in states would send out a live ballot to anyone who is listed as registered... despite often shockingly outdated voter-registration rolls.

The fear here is that through ballot-harvesting operations, huge numbers of unclaimed mail-in ballots could be collected, filled out, and dropped off at the polls without anyone identifying the fraud. Absentee ballots, the argument goes, are less prone to this abuse because an actual voter has to actively request one at their current registered address. It's imperfect... but less open to manipulation.

Irrespective of whether there's intentional fraud or not, there's a high probability that mail-in ballots ("vote by mail" and "absentee" together) will cause a mess in this election cycle. Millions of Americans are expected to vote through the mail this year than ever before. Much of the imminent mess will be attributed to political malice when it's really incompetence.

This was the cause of the mid-summer news cycle full of conspiracy theories that Trump was "defunding" the post office. Hysterical social media posts were shared widely on the Internet claiming Post Office boxes were being intentionally moved, and mail-sorting machines destroyed... all as part of a Trumpian scheme to disable the mail and prevent mail-in ballots from arriving.

Even though that Post Office conspiracy furor has died down for now, there's a very good chance that there will be all kinds of issues that arise from an unprecedented amount of voters entrusting their ballots to the mailman. Over a million mail-in votes are likely to be disqualified and discarded, according to an analysis in USA Today, for issues like missing signatures. Wisconsin, Michigan, and Pennsylvania rejected around 60,000 primary ballots already this year. These are key battleground states for the general election, which means the stakes will be even higher for the country on November 3.

There's also the issue of delayed ballot arrival to contend with... Different states have varying deadlines about when they must receive absentee and overseas ballots. If the COVID-19 pandemic really does push up mail-in voting to record numbers, there's a real possibility that state vote-handling systems will be stressed to a breaking point.

And all of this is happening during an election that is already the most contentious in living memory... Democrats still cling to the belief that President Trump didn't win the 2016 election fair and square, and are already spreading panic that Trump will refuse to step down if he loses.

Without a concession from the Democrats on election night (a very realistic scenario), the various vote-churning and litigation machines of both sides will kick into overdrive. Some states have up until December 12 to certify election results, which means that there would be weeks of gamesmanship and court battles over discarded ballots, extending deadlines, and other inevitable voting issues.

The national focus could also quickly turn to the prospect of a "contingent election" that would occur if neither side wins the electoral college. This would probably only happen if a libertarian or Green Party candidate had an unexpectedly strong finish, but much of the public's attention will turn to the next possible phase of greatest possible chaos and uncertainty.

A contingent election has only occurred three times: 1801, 1825, and 1837. So there is a process in place for this scenario, and it has been successful in keeping presidential succession going in the past. Essentially, the presidential election process is handed over to the House of Representatives, and then it all comes down to how many individual states a candidate wins. The Senate, in turn, picks the vice president (who is then "president of the Senate" after all).

But these are volatile times in the history of this country... If we don't have a winner on election night, the allegations of cheating, tyranny, and a stolen election will be screamed on TV screens, newspapers, and websites all across the country. Vast hordes of angry voters will take to the streets in protest – and from what we've seen from Biden voters all summer, some will riot, loot, and burn down neighborhoods.

It's in the best interests of the country for us to have a winner on November 3. Given the surge of mail-in ballots, such a clear resolution may be wishful thinking. With the way 2020 has gone so far, it seems much more likely that our Republic will be stress-tested in ways that will shake the foundations of our political institutions and challenge the genius of our founding documents to their core.